Samuel Smith Old Brewery (Tadcaster) v Marshall & Anor

Under Employment Rights Act 1996, an employer will only rarely act outside the range of reasonable responses by beginning disciplinary proceedings before hearing an employee’s grievance appeal, where the grievance concerns the disciplinary subject matter. Clear evidence of unfairness or uncompensatable prejudice is required.

A grievance does not ordinarily create a standstill unless the contract, legislation or applicable procedure provides for one. In assessing contributory conduct, the tribunal must consider conduct contributing to the dismissal, not conduct contributing only to procedural unfairness. Contribution must also be kept distinct from a Polkey reduction.

The respondents managed a public house under an agreement allowing the employer to vary the weekly staff-hours allocation. They refused to implement a reduction in hours while pursuing a grievance and grievance appeal.

The employer commenced disciplinary proceedings before the grievance appeal, and dismissed them for gross misconduct when they repeatedly refused to attend the disciplinary hearing or comply with the instruction. The Employment Tribunal found the dismissals unfair, reduced compensation by 10 per cent for contribution, and dismissed the breach of contract claims.

The employer appealed, challenging the finding of procedural unfairness and the approach to contribution.

1. Appeal allowed. The Employment Tribunal’s decision was set aside and the dismissals were held not to be unfair.
2. The Employment Tribunal had found that the reduction in staff hours was reasonable, that the instruction was clear, that the respondents had no justification for refusing to comply, and that dismissal for the misconduct fell within the range of reasonable responses. There was no contractual or statutory standstill provision, and the ACAS code did not require completion of a grievance appeal before disciplinary proceedings.
3. It was rarely likely to be outside the range of reasonable responses for an employer to proceed with disciplinary action before a grievance appeal, absent clear evidence of unfairness or uncompensatable prejudice. The respondents had already had a grievance hearing, could raise the reasonableness of the instruction at the disciplinary hearing, and had been told that the hours could be recalculated if their appeal succeeded.
4. The Employment Tribunal instead substituted its own view of the appropriate order of proceedings for that of the reasonable employer. It also relied on hindsight, including the fact that the respondents would have complied if their grievance appeal had failed. That information was not known to the employer at dismissal.
5. In assessing contribution under section 123(6), the Tribunal had to consider conduct contributing to the dismissal. It could not treat the employer’s alleged procedural unfairness as contribution by the respondents, and it had impermissibly conflated contribution with a Polkey deduction. The 10 per cent reduction was in any event outside the range of reasonable findings on the Tribunal’s own factual findings.

• Employment Appeal Tribunal: Allowed the employer’s appeal from the Employment Tribunal’s decision sent on 13 August 2009. The decision was substituted with a finding that the dismissals were not unfair.